Opinion

Kenan v. United States

Court
United States Court of Federal Claims
Filed
Aug 18, 2020
Status
Unpublished
On the bench
Elaine D. Kaplan
Cited by
0 cases
Authority
More cited than 12.4%

en banc in relevant part

How later courts described this case

  • en banc in relevant part

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

(Pro Se)

)

SANDRA C. KENAN, )

f/k/a SANDRA DENISE CURL, )

f/k/a SANDRA CURL JACOBS EL, )

) No. 20-287T

Plaintiff, ) (Filed: August 18, 2020)

)

v. )

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

ORDER AND OPINION

Plaintiff Sandra Kenan, proceeding pro se, filed a complaint on March 12, 2020. Compl.,

Dkt. No. 1. On April 23, 2020, the government moved to dismiss for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims

(“RCFC”). Def.’s Mot. to Dismiss (“Def.’s Mot.”), Dkt. No. 6. For the reasons discussed below,

the government’s motion to dismiss is GRANTED.

BACKGROUND

According to Ms. Kenan, on August 22, 2016, Internal Revenue Service (“IRS”) Agent

Veronica Kyriakides oversaw a search conducted on Ms. Kenan’s home. Compl. at 2; Obj. to

Dismissal (“Pl.’s Resp.”) Ex. A, at 10, Dkt. No. 7-1. 1 She claims that, during the search, IRS

agents improperly seized:

medical records, financial records, tax documents, banking statement[s], private

business client[’]s contact information along with social security numbers, birth

certificates, foreign exchange currency of Zimbabwe notes, Dinar notes, . . .

$90,000.00 from trust bank account with TD bank, . . . computers, cell phones,

social security cards, . . . [and] minor children birth certificates.

1

The page numbers in Ms. Kenan’s response brief and in her complaint are those provided by

the court’s electronic filing system.

Compl. at 6. Ms. Kenan avers that the warrant authorizing this search was “under someone

else[’s] name of Walter L. Vincente Hernandez” and was therefore defective. Id. at 5.

On September 25, 2019, a grand jury in the United States District Court for the District of

Maryland issued an indictment charging Ms. Kenan with conspiracy to defraud the United States

under 18 U.S.C. § 371, theft of government property under 18 U.S.C. § 641, and aiding and

assisting the preparation of a false return under 26 U.S.C. § 7206(2). See Indictment, United

States v. Curl, No. 8:19-cr-00444-GJH-1 (D. Md. Sept. 25, 2019), ECF No. 1. Ms. Kenan states

that following her indictment she was arrested and held in custody for an unspecified period of

time. Pl.’s Resp. at 3. Ms. Kenan was subsequently released under court supervision. Order

Setting Conditions of Release, United States v. Curl, No. 8:19-cr-00444-GJH-1, ECF No. 14.

The case is still pending.

In her complaint, Ms. Kenan alleges that Agent Kyriakides “violated constitutional duties

and the bill of rights, by stealing personal property using a defective warrant, and using stolen

property as evidence . . . to indict[ Ms. Kenan] and obtain a warrant for [her] arrest.” Compl. at

2. Ms. Kenan further asserts that Ms. Kyriakides “breached her contract obligation by not

honoring the Oath of Office she was sworn to uphold and violating the laws and rules of

procedures that govern the office of public servants and government.” Id. She seeks the return of

all her property, id. at 3, and the “removal of Agent Veronica Kyriakides and any other finance

damage this Court deem[s] fair,” id. at 9.

DISCUSSION

In considering a motion to dismiss for lack of subject-matter jurisdiction, the Court

accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor

of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

The Court may, however, “inquire into jurisdictional facts” to determine whether it has

jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991). It is well established

that complaints filed by pro se plaintiffs are held to “less stringent standards than formal

pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even

pro se plaintiffs must persuade the Court that jurisdictional requirements have been met. Harris

v. United States, 113 Fed. Cl. 290, 292 (2013).

The Tucker Act grants the United States Court of Federal Claims the power to “render

judgment upon any claim against the United States founded either upon the Constitution, or any

Act of Congress or any regulation of an executive department, or upon any express or implied

contract with the United States, or for liquidated or unliquidated damages in cases not sounding

in tort.” 28 U.S.C. § 1491(a)(1). The Court does not have the authority to order equitable relief,

such as an order directing the removal of a government official, or for return of property seized

pursuant to a search warrant, except to the extent that such equitable relief is “an incident of and

collateral to” a money judgment. James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting

28 U.S.C. § 1491(a)(2)).

Further, the Tucker Act—a jurisdictional statute—“does not create any substantive right

enforceable against the United States for money damages.” United States v. Testan, 424 U.S.

392, 398 (1976). Thus, a plaintiff must identify a separate money-mandating source of

2

substantive rights to establish the court’s jurisdiction. See Fisher v. United States, 402 F.3d 1167,

1172 (Fed. Cir. 2005) (en banc in relevant part).

Ms. Kenan has not identified a money-mandating source of law establishing a substantive

right to recover money-damages as required for this Court’s jurisdiction. See id. at 1173. The

gravamen of Ms. Kenan’s complaint is her challenge to the execution of the search warrant that

resulted in her indictment. She claims that the IRS “violate[d] the Constitution[] . . . by violating

. . . [the] Fourth Amendment . . . [which] protects citizen[s] from unreasonable search and

seizures” and asserts that in her case the “warrant did not meet the elements required.” Compl. at

7. However, the Fourth Amendment does not mandate the payment of money-damages for its

violation. Pekrul v. United States, 792 F. App’x 836, 838 (Fed. Cir. 2020) (citing Brown v.

United States, 105 F.3d 621, 623 (Fed. Cir. 1997)). Thus, Ms. Kenan’s claim that the August 22,

2016 IRS search violated her Fourth Amendment rights is outside this Court’s jurisdiction. See

id.

The Court also lacks jurisdiction over Ms. Kenan’s claim that Agent Kyriakides and other

federal officials violated various ethical obligations and their oaths of office. First, the Tucker

Act confers jurisdiction to hear claims against the United States, not against individuals. See

Wolffing v. United States, 144 Fed. Cl. 626, 637 (2019). Second, although Ms. Kenan

characterizes the alleged violation of their oaths of office as a breach of contract, such claims

instead sound in tort, Nalette v. United States, 72 Fed. Cl. 198, 202 (2006), and the Tucker Act

expressly excludes cases sounding in tort from its grant of jurisdiction, 28 U.S.C. § 1491(a)(1).

Finally, in opposing the government’s motion to dismiss, Ms. Kenan invokes 28 U.S.C. §

1495. Pl.’s Resp. at 2. Section 1495 of title 28 provides that the “United States Court of Federal

Claims shall have jurisdiction to render judgment upon any claim for damages by any person

unjustly convicted of an offense against the United States and imprisoned.” (emphasis supplied).

Ms. Kenan’s criminal case remains pending and she does not allege that she has been unjustly

convicted of a federal offense, so this provision does not apply.

The Court has reviewed the remaining claims in Ms. Kenan’s complaint and her

opposition to the government’s motion to dismiss and finds them either frivolous or not within

the Court’s Tucker Act jurisdiction. Her complaint must therefore be dismissed based on lack of

subject matter jurisdiction. 2

2

On June 16, 2020, Ms. Kenan submitted to the Court a sur-reply to the government’s reply in

support of its motion to dismiss. On June 23, the Court returned Ms. Kenan’s sur-reply to her

unfiled. Dkt. No. 9. Ms. Kenan has requested the Court reconsider its decision not to consider

Ms. Kenan’s sur-reply in its ruling on the government’s motion to dismiss. Dkt. No. 10. In light

of the Court’s dismissal of the complaint for lack of subject matter jurisdiction, the motion for

reconsideration is DENIED as moot.

3

CONCLUSION

The government’s motion to dismiss for lack of subject-matter jurisdiction is

GRANTED and Ms. Kenan’s complaint is DISMISSED without prejudice. The Clerk shall

enter judgment accordingly. Each side shall bear its own costs.

IT IS SO ORDERED.

Elaine D. Kaplan

ELAINE D. KAPLAN

Judge

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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